Tuesday, August 1, 2017

US Supreme Court to Decide Karsjens v. Piper (Part 1 of 2)

Note to Readers:The US Supreme Court has been asked to review
Karsjens v. Piper, the federal
lawsuit originating at the Minnesota Sex Offender Program.The Court’s decision to accept or reject the
appeal (either way) will reshape sexual offender civil commitment in the
US.Since June, four amicus briefs were
filed to try to persuade justices to accept the case.Links to the entire briefs are below.For a review of the briefs, what’s at stake, and
why SAJRT Blogger, Jon Brandt believes the Supreme Court will accept the
appeal, this MSOP update has been split into two parts.Part 2 will be published next week.- Kieran

By Jon Brandt, MSW, LICSW

In December
2011, when Kevin Scott Karsjens and 13 other men at the Minnesota Sex Offender
Program (MSOP) filed a pro se petition with the Federal Court in Minnesota, they
probably had a little hope and a lot of doubt that it would go anywhere.Thousands of previous petitions have been
tossed out of courts over 20 years, so why is Karsjens v. Piper headed to the Supreme Court (SCOTUS)?For the same simple reason that the US
District Court accepted Karsjens: an
involuntary treatment program with more than 700 detainees, and exits politically
blocked for two decades, is “clearly broken.”

More
than five years into Karsjens, this
case is progressively more difficult to unpack, but here’s a two-paragraph review:In early 2012, the US District Court began a
careful review of MSOP.After more than three
years of investigations, and a six week trial, Federal Judge Donovan Frank released the
court’s findings.In June 2015, in a
highly
principled opinion, Judge Frank determined that the sexual offender civil
commitment (SOCC) scheme in Minnesota was indeed broken: unconstitutional on 12
counts.The State maintained there was
nothing wrong at MSOP or with SOCC in Minnesota; that the problem was with
Judge Frank’s ruling.The US Court of Appeals agreed.

The disparate
opinions by the two courts might be explained by the District Court viewing
Karsjens as primarily a civil rights
case for a state institution that is “clearly broken,” while the Appellate
Court viewed the case as a states’ rights matter – essentially, “if it’s
broken, it’s not illegally broken.” In
June 2017, Dan Gustafson, lead attorney for the Plaintiffs (MSOP clients) filed
a persuasive appeal with SCOTUS (Docket 16-1394).In July, Defendants (State of Minnesota) filed
their opposition.

So, why do I think the Supreme Court will accept the
appeal?In
part, on the strength of four powerful amicus briefs by nationally recognized
law professors, scholars, and respected stakeholders. The briefs vigorously attack
the Eighth Circuit’s defense of status quo, describe how SOCC laws/programs
conflict with both constitutional principles and case law, and take careful aim
to convince justices to accept the appeal.The authors eloquently appeal to both liberal and conservative perspectives,
explain how SOCC schemes are contrary to empirical evidence, compare Karsjens with some of the
ground-breaking civil rights cases in US history, and provide sound case law
and strong arguments to reinstate the District Court’s determinations of “unconstitutional.”All the briefs boldly maintain that civil
regulations for “sex offenders” are rooted more in anger, fear, and moral panic,
than bona fide concerns for public safety, and that SOCC is at the pinnacle of such
civil regulations. Each of the briefs
take a somewhat different approach to try to persuade justices that SOCC in
Minnesota (and other states) is unconstitutional, under at least the Fourteenth
Amendment of the US Constitution - that no state shall deprive any person of
life, liberty, or property, without due process of law.Summaries
are largely excerpts from the amicus briefs.

Led by
Eric Janus, (former President and Dean of Minnesota’s Mitchell Hamline Law
School), 26 legal scholars from across the US joined in this amicus brief. Janus expressed that
SCOTUS is not being asked to revisit Kansas v. Hendricks (1997), which narrowly approved SOCC in concept, but rather to uphold the
constitutional principles that have been compromised by SOCC, in practice, now for 20 years.“This case should be reviewed by the Court for
three reasons: First, the Court of Appeals’ decision sharply departs from 40
years of this Court’s civil commitment jurisprudence and decisions by multiple
state courts of last resort, applying strict
scrutiny analysis. Second, the MSOP systematically thwarts the liberty
interests of over 700 detained people in Minnesota; more than 5,000 people are
deprived of their liberty under these laws nationwide. If the Court of Appeals’
rule stands, there is no remedy when States systematically abuse their civil
commitment programs. Third, the rule adopted by the Court of Appeals undercuts
the checks and balances to restrain governmental overreach of fundamental
individual liberty.”

“There is
one characteristic that always marks a genuine civil commitment scheme: the
durational limit. Confinement ends just as soon as its justification ends.The Minnesota Supreme Court approved MSOP’s
scheme, “so long as the statutory discharge criteria are applied in such a way
that the person subject to commitment… is confined only so long as he or she
continues both to need further inpatient treatment and supervision for his
sexual disorder and to pose a danger to the public.” These are not constitutionally insignificant
“rounding errors” that are the unfortunate consequence of any human endeavor.
There are strong reasons to conclude that there are hundreds of people held
unconstitutionally because of the design of the MSOP.If these defects are complex and
interrelated, their cumulative effect is simple and clear: Minnesota has systematically
and intentionally created a confinement system, detaining more than 700
individuals, that ignores and thwarts the constitutionally required duration
limitations of a bona fide civil commitment system.”

The
Cato Institute is a nonpartisan public-policy research foundation dedicated to
advancing the principles of individual liberty, free markets, and limited
government.Reason Foundation is a
nonpartisan public-policy think tank that advances a free society by developing
and promoting libertarian principles and policies.“The Eighth Circuit held that Petitioners
have no liberty interest in freedom from physical restraint—not that their
liberty interest must be balanced against the state’s interest in protecting
the public from violence, but that for sex offenders, that liberty interest
simply does not exist. The MSOP’s
complete failure to release any civilly committed sex offender is not simply a
back-end political problem; it is a design flaw baked into the system. Despite its stated goals, Minnesota’s
treatment approach falls flat and falls hard. By the state’s own admission, hundreds of
civilly committed individuals have never received an assessment of their risk
to the public.The MSOP is aware that at
least some of the people in its custody satisfy statutory discharge criteria. Sex-offender
laws have bored a hole in the nation’s constitutional fabric. As state and federal governments expand that
hole - threatening to swallow other rights and others’ rights—this Court should
intervene.”

Is SOCC creating “political prisoners?”Review of the other amicus briefs and
commentary, in Part 2…

Appreciation to the attorneys who provided
guidance for this op-ed piece.

1 comment:

Kansas v. Hendricks basically allows easier path to civil commitment for sexually violent predators, that I think could provide an opening for more nuanced commitment standard for seriously mentally ill. Karsjen v. Piper likely reopens Kansas v. Hendricks (even if those bringing it says it doesn’t) so not sure what it will do for my argument (which I make on page 2018 of "Insane Consequences: How the Mental Health Industry Fails the Mentally Ill").

Kieran McCartan, PhD

Chief Blogger

David Prescott, LICSW

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Alissa Ackerman, PhD

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